TM v The King

[2024] SASCA 5

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

TM v THE KING

[2024] SASCA 5

Judgment of the Court of Appeal  

(The Honourable Justice Doyle, the Honourable Justice Bleby and the Honourable Justice Kimber)

8 February 2024

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST CONVICTION RECORDED ON GUILTY PLEA - GENERAL PRINCIPLES

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - RAPE AND SEXUAL ASSAULT - EVIDENCE

CRIMINAL LAW - EVIDENCE - COMPLAINTS - OTHER MATTERS

CRIMINAL LAW - EVIDENCE - CREDIBILITY - GENERALLY

Following a trial by Judge alone, the applicant was found guilty of six counts of rape committed over a period of about 13 years.  The complainant was the partner of the applicant.  There was evidence of an initial complaint with respect to Count 6.  The complaint was made to a friend of the complainant and there were differences in the evidence of the complainant and the friend, including as to what the complainant said.  The applicant did not give evidence.  In submitting at trial that the prosecution had not proven any count beyond a reasonable doubt, the applicant relied on what were said to be inconsistencies in the evidence of the complainant and other criticisms of her evidence. 

The applicant appeals his convictions on three grounds. The three grounds advance several complaints which include the following contentions. That the trial Judge erred in his approach to the evidence of initial complaint, including by failing to give that evidence limited weight; not limiting the use of the initial complaint to Count 6; and in failing to direct himself in the terms set out in s 34M(4)(c) of the Evidence Act 1929 (SA). That the trial Judge erred in his evaluation of the credibility and reliability of the complainant, including by not considering the whole of the evidence; failing to appreciate that a finding that the complaint was credible and reliable was not sufficient to establish guilt; and by engaging in circular reasoning. That the trial Judge engaged in inadequate reasoning or, in the alternative, that the reasons were inadequate.

Held per the Court, granting permission to appeal and dismissing the appeal:

1.The trial judge did not err in his approach to the evidence of initial complaint. It was open to the trial Judge to accept the evidence of the complainant where it differed to that of the friend to whom the complaint was made. Having done so, there was no obligation to give the initial complaint limited weight. The directions in s 34M(4)(c) were not given, but they are not mandatory in trial by Judge alone. In the circumstances of this case, there is no error in the trial Judge not directing himself in terms consistent with that sub-section. The trial Judge limited the use of the evidence of initial complaint to Count 6.

2.The trial Judge did not err in his assessment of the credibility and reliability of the complainant.  The trial Judge did not fail to consider relevant evidence, engage in circular reasoning nor fail to appreciate that positive findings of credibility and reliability were insufficient to establish guilt beyond a reasonable doubt. 

3.The trial Judge did not engage in inadequate reasoning.  The approach to each of the matters raised by the applicant was open to the trial Judge and the reasons support the ultimate findings of fact. 

4.      The reasons are not inadequate. 

Evidence Act 1929 (SA) s 34M; Juries Act 1927 (SA) s 7, referred to.

DL v The Queen (2018) 266 CLR; Douglass v The Queen (2012) 86 ALR 1086; JGS v The Queen [2020] SASCFC 48; Lloyd v The King [2023] SASCA 106; R v J, JA (2009) 105 SASR 563; R v Keyte (2000) 78 SASR 68; R v P, S [2016] SASCFC 97; R v Rippey; Rippey v The King [2022] SASCA 141; R v Wickers (2019) 134 SASR 504; R v Sexton [2018] SASCFC 28, applied.
Kakule v The King [2023] SASCA 51; R v Landmeter (2015) 121 SASR 522, discussed.

R v TM [2023] SADC 55, considered.

TM v THE KING
[2024] SASCA 5

Court of Appeal — Criminal: Doyle and Bleby JJA and Kimber AJA

THE COURT:

Introduction

1. This is an appeal against conviction.  Following a trial by Judge alone, the applicant was found guilty of six counts of Rape.  The complainant in each count was the partner of the applicant and will be referred to as EN.  Each count was alleged to have been committed on a separate occasion.  On the prosecution case, EN made an initial complaint about Count 6. 

2. The six counts were alleged to have been committed over a period of about 13 years and were not the only occasions on which intercourse was said to have occurred without consent.  The applicant did not give evidence but put to the complainant in cross-examination that the alleged rapes were a ‘complete fabrication’.[1]  In submitting that the prosecution had not proven guilt beyond a reasonable doubt, the applicant placed reliance upon what were said to be inconsistencies in the evidence of EN and other matters. 

   [1]     Trial Transcript 194.

3. The applicant advances three grounds of appeal which contain overall four contentions.  Those contentions are that the trial Judge: erred in his approach to the evidence of initial complaint; erred in his approach to the evaluation of the credibility and reliability of EN; engaged in inadequate reasoning; and that his reasons are inadequate. 

4. We grant permission to appeal but dismiss the appeal.  Our reasons follow. 

   Background

5. Before turning to the issues in the appeal, it is helpful to summarise some of the evidence at trial. 

   The relationship

6. The complainant and the applicant were in a relationship for about 14 years and have two children, LM born in March 2006 and ZM born in October 2009.  The relationship commenced in around August 2004 and the applicant and EN began living together at Walkerville a short time later, before marrying in March 2009.  The relationship came to an end in March 2019 when the applicant left the family home. 

7. The complainant described the start of the relationship as ‘good’ and that there were ‘good times’ prior to the first alleged rape.  Within the first few months of the relationship, however, the complainant noticed the applicant becoming aggressive.  The complainant described the applicant having aggressive outbursts, with the first occurring in October 2004 and then about a month later in November 2004.  Following these outbursts, the complainant described the applicant as often being angry.  EN gave evidence that sexual violence started between January and May 2005.[2] 

   [2]     Trial Transcript 61.

8. EN said that leading up to their marriage and the birth of their second child in 2009, the relationship was ‘really good’.  However, EN said that following the birth of their second child, the relationship deteriorated. 

9. EN said the relationship began to improve again in 2010 and that there were only a few incidents of non-consensual sexual intercourse.  EN said that the relationship began to deteriorate again in 2014, with the applicant’s violent behaviour and non-consensual sexual intercourse continuing through to 2018.  In March 2019, the complainant told the applicant to leave the home. 

   Count 1

10. Count 1 was an act of anal intercourse and the first time the applicant was said to have raped EN.  EN placed this incident between January and May 2005. 

11. EN said that the applicant came home intoxicated after performing with his band.  EN was sleeping.  She said the applicant slid into bed next to her, placed his arms under her shoulders and pulled her underwear aside.  The complainant said to the applicant, ‘No I don’t want to’ and as he inserted his penis into her anus, she continued to tell him to stop.  The complainant said she could not struggle away because the applicant had his arms under her shoulders. 

12. The applicant then rolled the complainant onto her back and had penile vaginal intercourse with her.  EN said the applicant ejaculated on her stomach.  In cross-examination, it was established that in an affidavit before trial EN had stated that the applicant ejaculated on her back not her stomach. 

13. The complainant said that after the first incident of rape and prior to Count 2, there was consensual sexual intercourse.  The complainant stated that if the applicant initiated sexual intercourse, she was clear with a ‘yes’.  Around the time of the first incident, however, the complainant also described increasingly violent behaviour by the applicant with him pushing and shouting at her.  EN attributed this to the applicant being unhappy about them not having sexual intercourse in the lead up to the violent outbursts. 

    Count 2

14. EN said the second occasion of rape she recalled occurred in about June 2005.  EN said this was about two weeks before she found out she was pregnant with their first child. 

15. As with the first count, EN said the applicant had come home intoxicated after performing with his band and slid into bed behind her while she was sleeping.  EN said the applicant put his penis between her thighs and she told him that she did not want to have sexual intercourse.  EN said the applicant had vaginal intercourse with her and that she continued to tell him to stop.  EN said that she tried to struggle but eventually gave up as the applicant was much stronger.  EN said that the incident ended when the applicant ejaculated inside her vagina and then on her stomach.  EN gave evidence of semen running down her leg as she went to the toilet.  She was questioned in cross‑examination about that evidence which had not been mentioned in affidavits before trial. 

    Count 3

16. This count was alleged to have occurred on 20 March 2006, the night before the complainant gave birth to the first child, LM. 

17. EN said that she did not want to have sexual intercourse with the applicant as she was feeling unwell and was heavily pregnant.  Sensing that the applicant wanted to have sexual intercourse, she stayed up late in the spare room.  At 2:00am, she eventually went to bed.  EN described the incident as beginning with the applicant kissing her and her kissing him back.  EN said that the applicant positioned himself on top of her and had penile vaginal intercourse with her.  EN said that the applicant put his hands on her shoulders so she could not struggle away.  EN said that she told the applicant she did not want to have sexual intercourse and that she was ‘not feeling well’ and for him to get off her. 

18. In cross-examination, defence counsel raised an inconsistency between the evidence of EN and an earlier affidavit.  In the affidavit, EN described the applicant as being intoxicated and unable to ejaculate.  In evidence, EN said that the applicant was not intoxicated and did ejaculate despite having difficulty in becoming erect. 

    Count 4

19. Count 4 was said to have occurred on 13 April 2006, the applicant’s birthday. 

20. EN said that after returning home from the applicant’s birthday celebrations, she went to bed upset that the applicant had given her a list of things to do despite her breastfeeding.  EN said that the applicant stayed up watching television, but later came to bed.  EN said that the applicant leant over and kissed her.  She told him ‘No’ and that it was too soon after having given birth to be having sexual intercourse.  EN said that the applicant did not listen.  EN said that the applicant parted her knees and had vaginal intercourse with her.  EN said that she continued to say that she was in pain and asked the applicant to get off.  EN said that she was shouting this at the applicant throughout the sexual intercourse. 

21. In cross-examination, it was established that this incident was not set out in an affidavit given by EN on 28 March 2019.  EN said this was because she was running out of time when providing the affidavit. 

    Count 5

22. EN alleged that the applicant raped her around four or five weeks after the birth of their second child on 1 October 2009. 

23. EN said that she was asleep with her daughter who was in a co‑sleeping crib next to her.  EN said that she woke to the applicant parting her legs.  EN said that she told the applicant that she could not have sexual intercourse with him because, before giving birth to their second child, she had pneumonia and had fractured both of her ribs from coughing.  EN said that the applicant ignored this and proceeded to have vaginal intercourse with her.  EN said that she was shouting at the applicant to get off her, that she did not want to have sexual intercourse and wanted him to stop. 

24. In cross-examination, an inconsistency was raised with respect to whether the daughter was in her crib next to the bed when the rape occurred, or in a cot in another room. EN said that she could only remember that her daughter was there at the start of the incident and not whether she was moved to another room by the applicant.  EN said that her inability to recall this detail was because the applicant would often rape her. 

    Count 6

25. The last time that EN alleged the applicant raped her was on 9 December 2018 after a Christmas function at a hotel hosted by the gym she attended. 

26. EN said that she returned home after having had about six or seven drinks at the function.  EN said that the applicant was not home and she went to bed.  EN said that she woke to the applicant performing cunnilingus and that she told him to stop and to get off.  EN said that the applicant responded, saying something like ‘Come on, you know you want to’ and committed the act the subject of Count 6 by having vaginal intercourse. EN said that the applicant was holding her shoulders down and that she continued to tell him to stop. 

    The end of the relationship

27. EN said that in March 2019, the relationship had reached the point where she and the applicant were barely talking.  One night a friend, AT, was at the house.  The applicant was angry about AT being there and about takeaway EN had ordered.  EN said that she told the applicant that she was sick of the abuse and that they were finished.  The applicant left that night, returning only the next day for a couple of hours to take some belongings.  EN said that by this time she was stronger and she had had enough of the abuse. 

28. EN met with a lawyer who gave her advice about speaking to the police.  EN did that for the first time on 12 March 2019. 

    Ground 1 — initial complaint

29. Ground 1 is expressed as follows: 

    1.   The trial judge erred in his approach to the evaluation of the evidence of initial complaint.

    Particulars

    1.1.   The trial judge erred in relying on the complainant’s evidence of initial complaint as bolstering her credibility generally.

    1.2.   The trial judge erred in relying on the evidence of complaint for consistency of conduct generally in circumstances where the content of the complaint as deposed to by the complaint witness was in conflict with the complainant’s evidence.

    1.3.   The trial judge erred in failing to have any regard or alternatively, adequate regard, to the conflicts between the account of the complainant and the complaint witness in assessing the credibility and reliability of the complainant.

    1.4.   The trial judge erred in his approach to the evidence of the complaint witness in circumstances where the complaint witness was found to be credible, and her reliability was not rejected beyond reasonable doubt.

    1.5.   The trial judge erred in his approach to the evaluation of and reliance on the demeanour of the complainant and the complaint witness.

30. In oral submissions, the applicant advanced four contentions about the approach of the trial Judge not all of which are within the particulars of Ground 1.  Nevertheless, all will be dealt with.  Before dealing with the contentions, we set out the evidence of the initial complaint and relevant aspects of the reasons of the trial Judge. 

    The evidence

31. On the prosecution case, somewhere between a couple of days or a little over a week after Count 6, EN spoke to AT about what had occurred during the incident the subject of that count.  EN and AT were in the habit of attending the gym together. At trial, there was no dispute that they had done that on 18 December 2018 and that on that day, EN spoke to AT about sexual activity with the applicant.  Nevertheless, as will be seen, there were differences in the evidence of EN and AT.  First, as to whether the conversation occurred in the car or at the gym.  Second, as to what was said. 

32. EN said that on 18 December 2018, she collected AT from her home and drove her to the gym.  In evidence in chief, EN said that during the drive she told AT that after the gym party the applicant had performed oral sex on her while she was asleep and ‘that [the applicant] then raped me’.  When asked in cross examination what she had said to AT, EN said: ‘I told her about the rape, that he was performing cunnilingus on me, I was in shock, and I hadn’t allowed him to have sex with me, but he did, and I said “no”, that’s why I was angry about it and told [AT]’. 

33. AT gave evidence.  AT confirmed that EN had spoken to her in December 2018 but placed the conversation as having occurred at the gym.  AT said that EN told her that she had been really drunk after the gym party, upon leaving the party she went to her next-door neighbour’s house and consumed more alcohol there before returning home.  AT said that EN told her that the applicant ‘had his way with her… and that she didn’t want him to do that’.[3] 

    [3]     Trial Transcript 207.

34. AT was asked about the words used by EN and said:

    QDo you recall were they the words used, or were there any other words that you can recall.

    AWell, pretty much, it was really uncomfortable, yeah.  And she said to me that she didn't want him to do that, and she felt really ashamed.  Something along that - it was really too hard to talk, there were people all around us.

    QDid she tell you what she meant by [TM] having his way with her.

    ASex, sexual intercourse.

    QIs that what she said to you.

    AYes.

    HIS HONOUR

    QWhat words did she use.

    AAlong those sort of words, that - like she said he had his way with her, he had sex with her, and he said that - she said to me that she didn't want to do it, but she said she was really drunk and she said it was - and I said 'Oh it sounds horrible'.  Honestly I tried to cut it short, because there's so many people around us, and I felt like it wasn't the place to be talking about this.

    XN

    QDid [EN] tell you what she was doing while [TM] was having sex with her, had his way with her.

    ANo.  She just told me she was really drunk.

    QShe told you she didn't want him to do that.

    AThat's - yes, she did say that.

    QWere they the words, or were there other words she used.

    ANo, she just said to me that she didn't want that to occur.  Something, you know, like feeling ashamed or uncomfortable.  I don't know, honestly, because I did try to cut it short.  Honestly, to tell you the truth, I just felt it wasn't the place for us to be chatting about this sort of stuff, because everyone around us all know us from that area, like we know everyone there.[4]

    [4]     Ibid 207–208.

    The approach and findings of the trial Judge

35. The trial Judge identified there were differences in the evidence of EN and AT about where the complaint had been made and about what EN had said.  As to the differences in what had been said, the trial Judge identified that AT had not given evidence of cunnilingus being mentioned, that AT said that EN had referred to being ‘really drunk’ and had said ‘that she didn’t want to do it, but she said she was really drunk’.[5]  Having identified those differences, the trial Judge accepted the evidence of EN where it differed to that of AT.  The trial Judge said: 

    [78]I found AT to be an unreliable witness.  She was unable to explain the detail of what was said to her.  There was an element of reconstruction and paraphrasing.  On the whole, AT was an unimpressive witness.  As I have already mentioned, she presented in a very distressed manner.  In fact, she had an unusual presentation.  In my view, she was unnecessarily nervous at times.  It may be she is just a person with a nervous disposition.  However, I got the impression that her stressed stated contributed to her fragmented thinking.  When asked a basic question designed to elicit the initial complaint evidence, she responded with evidence in relation to EN telling her about TM hitting her.  When asked if EN said anything further, she responded with ‘no’ and that ZM told her something, at some stage. 

    [79]I found EN to be a far more reliable witness having regard to the detail of the complaint, and the location of where the complaint took place.  I consider it unlikely that EN would complain to AT in a gym full of people.  AT was the first person she had talked about TM offending against her.  As a matter of common sense, it is more likely that the initial complaint would be made in circumstances of privacy, and in this case in EN’s car.  I note here that EN said that AT appeared to be in ‘shock afterwards’.  It may be that the shock of what she was told has affected the reliability of her evidence.

    [80]To the extent that there are inconsistencies, I prefer the evidence of EN.  The inconsistencies arising out of the initial complaint evidence has not caused me to doubt EN’s account.  For those reasons, I am satisfied that EN complained to AT in December 2018 (in the way she described) about TM raping her on the night of the 2018 Christmas party organised by the gym.[6] 

    [5]     Ibid 208.

    [6]     R v TM [2023] SADC 55, [78]–[80] (R v TM).

    The use of the evidence by the trial Judge

1. Having made the findings above, the trial Judge turned to the use of the initial complaint.  The trial Judge said:[7] 

   [81]The initial complaint does not explain how the police became involved, or how the initial allegations came to light.  It does show some degree of consistency of conduct of EN, in that she complained to AT at a time when she might have been expected to.  At that point, she had only recently been raped and was at a point in her life where she felt strong enough to complain.  To that end, the evidence is capable of enhancing the credibility of EN’s account.  I direct myself that this is the only use that can be made of the initial complaint evidence.  Specifically, I direct myself that the evidence is not admitted and cannot be used as evidence of the truth of what was alleged. 

   [7] Ibid [81].

2. Later in his reasons, and in the specific context of considering Count 6, the trial Judge relied upon the initial complaint in accepting the evidence of EN about that count.  The trial Judge relied upon the initial complaint for both the fact of a complaint having been made when it might be expected and as consistent with the evidence given by EN of the act the subject of Count 6.  The trial Judge said:[8] 

   [135]I have considered the complaint evidence to AT.  I am satisfied the complaint to AT was made in the terms articulated by EN.  The complaint was made at a time when EN felt strong enough to tell someone.  It was made shortly after the rape and in circumstances that in my view show consistency of conduct.  The evidence supports her credibility.

   (emphasis added)

   [8] Ibid [135].

   Legislation

3. Before turning to the four contentions of the applicant with respect to the initial complaint we set out s 34M:

   34M—Evidence relating to complaint in sexual cases

   (1)     This section abolishes the common law relating to recent complaint in sexual cases.

   Note—

   See Kilby v The Queen (1973) 129 CLR 460; Crofts v The Queen (1996) 186 CLR 427

   (2)     In a trial of a charge of a sexual offence, no suggestion or statement may be made to the jury that a failure to make, or a delay in making, a complaint of a sexual offence is of itself of probative value in relation to the alleged victim's credibility or consistency of conduct.

   (3)     Despite any other rule of law or practice, evidence related to the making of an initial complaint of an alleged sexual offence is admissible in a trial of a charge of the sexual offence.

   Examples—

   Evidence may be given by any person about—

   ·when the complaint was made and to whom;

   ·the content of the complaint;

   ·how the complaint was solicited;

   ·why the complaint was made to a particular person at a particular time;

   ·why the alleged victim did not make the complaint at an earlier time.

   (4)     If evidence referred to in subsection (3) is admitted in a trial, the judge must direct the jury that—

   (a)it is admitted—

   (i)to inform the jury as to how the allegation first came to light; and

   (ii)as evidence of the degree of consistency of conduct of the alleged victim; and

   (b)it is not admitted as evidence of the truth of what was alleged; and

   (c)there may be varied reasons why the alleged victim of a sexual offence has made a complaint of the offence at a particular time or to a particular person,

   but that, otherwise, it is a matter for the jury to determine the significance (if any) of the evidence in the circumstances of the particular case.

   (5)     It is not necessary that a particular form of words be used in giving the direction under subsection (4).

   (6)     In this section—

   complaint, in relation to a sexual offence, includes a report or any other disclosure (whether to a police officer or otherwise);

   initial complaint, in relation to a sexual offence, includes information provided by way of elaboration of the initial complaint (whether provided at the time of the initial complaint or at a later time).

   The first contention

4. This contention relates to the use of the initial complaint by the trial Judge.[9] The applicant accepts that the ‘consistency of conduct’ set out in s 34M(4)(a)(ii) permits the two uses identified by the trial Judge. That is, consistency in making a complaint when one might expect it to be made and consistency between the terms of the complaint and the conduct alleged.[10]  Nevertheless, the applicant contends that in this case, neither use was open.  The applicant submits that the evidence of EN was not supported by AT and that in the absence of such support it could not be used. 

   [9]     Amended Appeal Ground 1.1. 

   [10]   R v Rippey; Rippey v The King [2022] SASCA 141, [132]; R v J, JA (2009) 105 SASR 563, [95].

5. We reject the submission of the applicant. Section 34M does not condition the admissibility and use of evidence of initial complaint upon the existence of independent support.[11] 

   [11]   R v P, S [2016] SASCFC 97, [73].

6. In any event, the evidence of AT provided independent support for EN having made the initial complaint and insofar as there were differences, the trial Judge preferred the evidence of EN. 

7. As for AT providing support for the complaint having been made, it was the evidence of both witnesses that EN told AT about an occasion of sexual activity on the night of the Christmas function.  EN said that she told AT she had been raped and that she had not allowed the applicant to have sex with her.  AT said that she was told that the applicant had ‘had his way’ with EN and that EN ‘didn’t want that to occur’. 

8. Unsurprisingly, the trial Judge did not reject the evidence of AT that a complaint had been made about sexual conduct by the applicant with EN.  That a complaint had been made was common to both EN and AT and was not the issue at trial.  The issue was whether a finding could be made as to the terms of the complaint given the differences in the evidence of EN and AT.  

9. We turn to the complaints that it was not open to rely on the evidence of EN as to the terms of the complaint and that the trial Judge did not have proper regard to the conflicts between the evidence of EN and AT.[12]  As set out above, the trial Judge identified the differences.  For reasons to be given in Ground 3, the reasons the trial Judge gave for accepting the evidence of EN about what had been said were open to him and not inadequate.  Insofar as the applicant contends the trial Judge erred as AT was credible and her reliability was not rejected beyond a reasonable doubt,[13] there was no obligation to reject AT’s evidence to that standard before EN’s evidence could be accepted.  The criminal onus did not apply to the initial complaint. 

   [12]   Amended Appeal Grounds 1.2 and 1.3.

   [13]   Amended Appeal Grounds 1.4

10. Having preferred the evidence of EN as to what she had described, it was open to the trial Judge to use the initial complaint for both purposes encompassed by the term ‘consistency of conduct’.  The complaint was made shortly after the conduct the subject of Count 6.  The evidence of EN having been preferred, what EN had said (i.e. – that the applicant performed oral sex while EN was asleep; the applicant ‘then raped’ her and that she said ‘no’) was consistent with the conduct alleged in Count 6. 

11. In submissions, the applicant advanced a further complaint.  The applicant submitted that ‘it remains unclear how the trial Judge arrived at the conclusion that the timing of the complaint according to the complainant’s evidence alone, could or did enhance her credibility’.  We reject that submission.  The trial Judge found that the complaint was made after EN had ‘only recently been raped’.[14]  That finding was open.  On the evidence, the complaint was made ‘probably a couple of days’[15] after the conduct the subject of Count 6 occurred.

    The second contention 

    [14]   R v TM (n 6) [81].

    [15]   Trial Transcript 120.

12. The applicant contends that if the initial complaint was able to be used by the trial Judge, he was obliged to give it ‘limited weight’. 

13. In advancing this contention, the applicant relies upon the approach in R v Landmeter (Landmeter).[16]  In Landmeter, the complainant gave evidence of having made an initial complaint to her father.  The father did not give evidence.  This Court rejected that the evidence was not admissible in the absence of evidence from the father.  The Court went on to observe:[17] 

    In our view, the evidence had limited weight, if only because there was no evidence from V's father to confirm that the complaints were made as she asserted.  The use of the evidence in those circumstances was confined to aiding an appreciation of the events from V's point of view and so bearing on her credibility and potentially explaining why the authorities were not notified about the allegations until some years after the events.  The limits of the uses to which the evidence could be put were adequately explained by the trial Judge.

    [16] (2015) 121 SASR 522.

    [17] Ibid 529 [16].

14. Landmeter does not establish that the absence of support for the making of a complaint means that evidence always has limited weight.  Whether that is the case must depend on the evidence given in the trial.  In any event, in this case, there was support in the evidence of AT.  As set out above, the real issue was the terms of the complaint.  It was open to the trial Judge to prefer, as he did, the evidence of EN.  Having done so, there was no obligation to treat the initial complaint as having limited weight. 

    The third contention

15. The trial Judge did not give himself the direction in s 34M(4)(c) of the Evidence Act. The applicant contends that the absence of the direction deprived him of a forensic protection to which he was entitled.  We reject this contention. 

16. The starting point is that the words ‘the judge must direct the jury’ in s 34M(4) are not consistent with mandating that a Judge sitting alone include within his or her reasons the directions prescribed. The text of s 34M(4) can be compared to s 34R(1) which mandates that if discreditable conduct evidence is admitted under s 34P, the judge must identify and explain the purpose for which the evidence may or may not be used ‘whether or not sitting with a jury’. The same approach is taken in s 34P(2) with respect to evidence essential to guilt.

17. In R v Wickers,[18] it was held:[19] 

    Although a trial judge is required to consider the evidence of complaint if admitted under s 34M(3) and to use it only for the purposes set out in s 34M(4), I do not consider that, in a trial by judge alone, the judge is required to direct himself in the precise terms set out by s 34M(4). I consider it is obvious on the face of s 34M(4) itself that the direction therein is mandated only in respect of a trial by jury.

    The substantive principles enacted by s 34M(3) apply in any trial. However, that does not mean that the judge is required to give himself the same direction as would be required in a jury trial.

    [18] (2019) 134 SASR 504.

    [19] Ibid [186]–[187] (Kelly J).

18. That a Judge sitting alone is not obliged to direct themselves in the terms set out in s 34M(4) does not mean that, in a particular case, a trial Judge may not need to play close attention to the matters raised by s 34M(4). Further, evidence must not be used in a way which is inconsistent with that sub-section. A trial Judge is required to give adequate reasons.

19. In this case, the applicant contends that a protection afforded by the direction was denied by the absence of the direction. 

20. In Kakule v The King,[20] in the context of a jury trial, this Court said the following with respect to sub‑s (4)(c):[21] 

    However, s 34M(4)(c) is not only concerned with delay. It is concerned with any circumstance of timing and the identity of the recipient of the complaint. It leaves to the jury whatever inference they may determine to draw on account of the complaint being made at a particular time or to a particular person, without placing the imprimatur of the court on any one such possible reason.

    Where evidence of a complaint is admitted, it will generally be a feature of the defence case that the complaint is untrue. The defence will often posit reasons for why that is so, by reference to the timing of the complaint and the person to whom it is made. For example, the defence may urge a thesis that the complainant is covering for conduct which the complainant now regrets. In such a case, s 34M(4)(c) provides the court's imprimatur to the need for the jury to consider any reasons for these circumstances of the complaint posited by the defence, without endorsing those reasons or the prohibited reasoning.

    [20] [2023] SASCA 51.

    [21] Ibid [29]–[30].

21. The Court in Kakule went on to observe that the direction that sub-s (4)(c) requires has two functions.  First, an educative function to a jury in directing them away from engaging in prohibited reasoning.  Second, a forensic protection, including to a defendant, ‘at least where a defence is raised attacking the veracity of the complaint’.[22]  As to the educative function, we doubt that applies in a trial by Judge alone but that is not necessary to decide.  In this case, it is the forensic protection which the applicant submits was not provided. 

    [22] Ibid [31].

22. In this case, there was no challenge to the identity of the person to whom the complaint was made.  Having perused the transcript, there is only one aspect of the trial which raises the possibility of a forensic challenge to the veracity of the complaint. 

23. The following exchange occurred in cross‑examination:

    QYou'd determined in your mind, shortly following the December 2018 rape, that you were determined to leave the relationship; is that right.

    AYes.

    QThat's why you decided to tell [AT] about that most recent rape, is that right.

    ANo.

    QSorry.

    ANo, it's not why I decided to tell her.

    QWhy did you decide to tell [AT].

    ABecause I needed her support.  And talking about it, I felt like I was ready to talk about everything.[23]

    [23]   Trial Transcript 150.

24. With respect to counsel at trial, the purpose of the above cross-examination is not entirely clear.  One reading is that it was being suggested to EN that her complaint was made motivated by a desire to leave the relationship, not because what was said was true.  If that was being suggested, it was not expressly put.  If it was a challenge to the veracity of the complaint, it was faint.  It was also not relied upon in the closing address of counsel for the applicant at trial nor was it relied on during the appeal. 

25. Even assuming the above to be a forensic challenge to the veracity of the reason for the complaint, we are not satisfied that the failure to give the direction in sub-s (4)(c) was capable of producing a substantial miscarriage of justice.  The challenge was faint, not pursued and not later relied upon.  As set out above, there was no dispute that a complaint had been made.  The real forensic contest was about the terms of that complaint given the differences in the evidence of EN and AT and, if those differences were not resolved in favour of EN, the light that shed on the credibility of EN about being raped.  The protective aspect of sub‑s (4)(c) could not bear on the forensic contest about what had been said.  Put another way, the resolution of that contest did not lie in the issue, at best, faintly raised in cross‑examination (i.e – whether EN may have complained because she had decided to leave the relationship), it lay in in evaluating the evidence of EN and AT about what had been said.  The trial Judge did that.  For the reasons he gave, the trial Judge preferred the evidence of EN. 

    The fourth contention

26. The applicant contends that although the initial complaint was only about the conduct the subject of Count 6, the trial Judge erred as he used it as consistency of conduct on all counts.  The applicant submits that the trial Judge needed to direct himself that he had only used it on Count 6.  For the reasons which follow, the trial Judge did not use the initial complaint on any count other than Count 6.  The direction for which the applicant contends was not required. 

27. The starting point is the approach of the trial Judge at [81] of his reasons immediately after he accepted the evidence of EN in preference to that of AT. We have set that out at [36] above. There is nothing in that passage which suggest the complaint might have been used on any count other than Count 6. To the contrary, in setting out that the initial complaint showed ‘some degree of consistency of conduct’, the trial Judge referred to EN having ‘only recently been raped’. The recent rape was Count 6.

28. Having found that the initial complaint had been made, the trial Judge later turned to consider each count separately, in chronological order.  In doing so, the trial Judge set out the evidence given by EN of the conduct the subject of the specific count; her evidence of some of the surrounding circumstances; and criticisms of that evidence advanced by the applicant.  In accepting the evidence of EN as to each of Counts 1–5, the trial Judge made no reference to the initial complaint. 

29. That can be contrasted to the approach to Count 6.  When the trial Judge turned to consider Count 6 and whether he accepted the evidence of EN of that count, the initial complaint was considered.  The trial Judge outlined the evidence the subject of Count 6, found it ‘convincing’ and, unlike in the other counts, referred to the evidence of initial complaint and found it supported the credibility of EN.  Only then did the trial Judge accept the evidence of EN on Count 6. 

    Ground 1.5

30. Ground 1.5 was not addressed in submissions and need not be considered. 

31. We dismiss Ground 1. 

    Ground 2

32. Ground 2 is expressed as follows:

    2.The trial Judge erred in his evaluation of the complainant’s credibility and reliability.

    Particulars

    2.1.   The trial judge erred in his evaluation of the complainant’s demeanour.

    2.2.   The trial judge found that the complainant was frank, and her evidence was compelling without considering the internal inconsistencies, alleged late inventions, defence criticisms and conflicts with the initial complaint witness.

    2.3.   The trial judge erred in the application of the burden and standard of proof to his evaluation of the complainant’s credibility and reliability, and/or engaged in circular reasoning in relation to that evaluation.

33. No submission was made with respect to Ground 2.1.  We will only deal with Grounds 2.2 and 2.3.  For the reasons which follow, we reject each complaint. 

    Ground 2.2

    The specific finding about EN having been ‘frank’ and ‘compelling’

34. To understand this complaint, it is necessary to place the findings about EN being ‘frank’ and ‘compelling’ in context.  While summarising the evidence in his reasons, the trial Judge set out the evidence of EN about how she felt about the applicant during the relationship.  Notwithstanding the conduct of the applicant in raping her, EN said that, during the relationship, she loved the applicant and engaged in consensual intercourse.  EN gave evidence about her marriage being a ‘contract’; the relevance of her faith to her decision to remain in the marriage; and her hopes the applicant would change.  In summarising this part of the evidence of EN, at [64] of his reasons, the trial Judge concluded that EN had been ‘frank’ and that this evidence was ‘compelling’. 

35. In making these findings, the trial Judge did not expressly state that he had considered the whole of the evidence and every criticism made of the evidence of EN.  Nevertheless, we are not satisfied that trial Judge erred in not doing so.  These were no more than findings about an aspect of the evidence of EN.  The Judge was entitled to make findings as he discussed the evidence, provided any such finding did not foreclose a proper evaluation of whether the prosecution had proven guilt beyond a reasonable doubt.  As will be seen, the trial Judge did not commit that error. 

    Ground 2.3

1. As the applicant submitted, a finding of credibility and reliability is not sufficient to establish guilt.  Whether a count is proved beyond a reasonable doubt is a separate question.[24] 

   [24]   Douglass v The Queen (2012) 86 ALR 1086 [12].

2. We turn to whether the trial Judge failed to understand that a positive finding as to credibility and reliability was not sufficient to establish guilt and erred in his approach to the onus of proof with respect to those issues.  To understand why the trial Judge did not mistake his task, it is necessary to set out the structure of the reasons in some detail. 

3. At the beginning of his reasons, the trial Judge correctly identified the onus of proof with respect to all elements of the offence of rape.[25]

   [25]   R v TM (n 6), [12]–[13].

4. As set out above, the findings about EN being ‘frank’ and ‘compelling’ were made at [64] of the reasons.  Before this aspect of the reasons, the trial Judge had summarised the evidence of EN about the conduct the subject of each count along with aspects of the evidence said by the applicant to undermine that evidence.  From [67]–[81], the trial Judge dealt with the evidence of initial complaint and, as set out with respect to Ground 1, gave reasons for preferring the evidence of EN where it differed to that of AT.  From [86]–[99], the trial Judge summarised, in considerable detail, the criticisms of the evidence of EN relied upon by the applicant, both generally as well as specifically with respect to each count. 

5. At [101]–[104], the trial Judge made general findings about the credibility and reliability of EN, but did not make any finding as to whether any count had been proven beyond a reasonable doubt.  It is helpful to set out these aspects of the reasons in full: 

   [101]I found EN to be a persuasive witness.  There was nothing about her presentation that caused me to doubt anything she said.  Her account was compelling.  She provided a rich and detailed account both as to the way she described the sexual offending against her, but also the abuse that she suffered (at the hands of TM) over 14 years.  The specific incidents that she was able to differentiate from the rest (the charged acts) were vivid recitals of what I regard to be events that happened.  In my view, there was nothing about her evidence that indicated a fabricated account.  She was prepared to give evidence, despite him raping her many times, that she had consensual intercourse with TM from time to time, that she simply began to accept that he would rape her, and that she loved him, all of which had the hallmarks of a truthful account.

   [102]In my view, EN was a credible witness who was doing her best to give an accurate account of events, some of which occurred many years prior.  I have considered whether, despite my observation that she was a credible witness, was she nonetheless an unreliable witness.  I accept, at times, EN was not certain as to some details.  These included, for example, where TM ejaculated, whether ZM was in the bed (or was removed from the bed) before she was raped, if TM ejaculated or not, and if he was drunk or not.  The issue is whether these aspects upon which she was uncertain make her an unreliable witness such that I should have a reasonable doubt about her evidence as they relate to each count. 

   [103]In my view, the details upon which she was unsure were peripheral matters and did not materially undermine my assessment of her reliability as to the essential elements of each of the charged acts of rape.

   [104]Throughout the trial, EN provided small details that, continually reinforced my view of her as an honest and truthful witness.  These included: (i) the way that she acknowledged that her and TM ‘did have good times’; (ii) that after she fell pregnant with LM, she didn’t leave her relationship with TM as ‘It was easier to stay, [she] was hoping [he] would change.  He’d been given a diagnosis of BPD and was seeking help’ – she was hopeful that he would change; (iii) her description of their relationship immediately after they were married – that ‘It seemed to be better [as the] non-consensual sex wasn't as often’; and (iv) despite her being raped for the years leading up to her marriage to TM, that her relationship was ‘really good’ as they ‘were starting to enjoy each other's company again…[TM] just wasn't aggressive anymore, so it was easier to be around him’.  EN’s evidence that from the middle of 2010 to late 2013 ‘There was only a couple of incidences of non-consensual sex but most of the time he would wait, he would wait until [she] was ready or [she’d] agree to his advances’ had the ring of truth to it.  Lastly, I found her evidence compelling that she stayed with him because she loved him, that she would have consensual intercourse with him (from time to time) despite it all because to her a ‘marriage was a contract, it was a family contract and [she] was trying to keep the family together and [was] hopeful TM would get better with the help’.  She was also Catholic; she had religious views and didn’t want to just walk away.

6. At [105]–[108], the trial Judge directed himself with respect to the need to give each count separate consideration and with respect to discreditable conduct and then turned to consider each specific count. 

7. Between [109]–[137], the trial Judge considered each count in the order in which it was alleged to have occurred.  It was only at this point that the trial Judge accepted the evidence of EN as to any count.  In considering each count, the trial Judge referred to aspects of the evidence of EN about the count being considered; the criticisms of most relevance to that count; and gave reasons for accepting the evidence of EN despite the criticisms made by the applicant. 

8. Having done the above, under the heading ‘Conclusion and findings’, the trial Judge expressed his conclusions in the following way: 

   [138]I accept EN’s evidence beyond a reasonable doubt about what she says TM did to her during her relationship with the accused.  Specifically, I am satisfied the accused had sexual intercourse with EN without her consent knowing she was not consenting on the specific occasions she described which were the subject of Counts 1 to 6 (inclusive). 

   [139]In relation to the charges of rape, the subject of Counts 1 to 6 (inclusive), I find the accused guilty.[26]

   [26]   R v TM (n 6) [138]–[139].

9. The approach of the trial Judge in only accepting the evidence of the complaint on a count after undertaking the approach set out above is not consistent with him reasoning immediately to guilt from the finding EN was ‘frank’ and ‘compelling’ at [64]; from the acceptance of EN’s evidence of the complaint at [78]–[80]; nor from the findings made at [101]–[104] without applying the correct onus of proof.  While the trial Judge said within [101] that ‘the specific incidents that she was able to differentiate from the rest (the charged acts) were vivid recitals of what I regard to be events that happened’, that was not a finding that the evidence of any count had been established beyond a reasonable doubt.  The approach of the trial Judge is also not consistent with him failing to appreciate that a finding that EN was ‘frank’ and ‘compelling’ about any issue, or that her evidence was accepted on any issue, was not sufficient for a finding of guilt.  As set out above, the trial Judge summarised the criticisms of the evidence of EN in considerable detail and then evaluated those criticisms in the context of the counts to which those criticisms particularly related before accepting the evidence of EN as to any count and before making a finding of guilt. 

10. The approach of the trial Judge confirms that the ultimate findings of guilt were made only after considering and evaluating all the evidence.  It is patent that the trial Judge did not reason solely from his assessment that EN was a frank, compelling, credible or reliable witness about any issue to the finding of guilt of any count.  The whole of the reasons demonstrate his Honour was cognisant of all criticisms of the evidence of EN and applied the onus of proof correctly. 

    Circular reasoning

11. The contention that the trial Judge engaged in circular reasoning relates to the approach of the trial Judge in preferring the evidence of EN over that of AT as to where the complaint had been made.  Consistent with the way this contention was argued by the applicant, this is a complaint more appropriately dealt with within Ground 3. 

12. We dismiss Ground 2. 

    Ground 3 — inadequate reasoning and inadequate reasons

13. Ground 3 is expressed as follows:

    3.The trial judge erred in law by failing to give sufficient reasons or alternatively, by adopting an erroneous reasoning process, to explain how and/or why the matters raised by the appellant did not give rise to reasonable doubt or a reasonable possibility of innocence.

    Particulars

    3.1.   The trial judge failed to adequately address the internal inconsistencies, alleged late inventions, defence criticisms and conflicts with the initial complaint witness in the complainant’s evidence.

    3.2.   The trial judge failed to adequately address how the internal inconsistencies, alleged late inventions, defence criticisms and conflicts with the initial complaint witness in the complainant’s evidence impacted upon the overall assessment of her credibility and reliability.

    3.3.   The trial judge made findings which constituted an acceptance of the credibility and reliability of the complainant without adequately addressing the internal inconsistencies, alleged late inventions, defence criticisms and conflicts with the initial complaint witness in the complainant’s evidence.

    3.4.   The trial judge failed to correctly apply the burden and standard of proof in addressing the internal inconsistencies, alleged late inventions, defence criticisms and conflicts with the initial complaint witness in the complainant’s evidence.

    3.5.   The trial judge failed to adequately address the implications arising from the conflicts between the evidence of the complainant’s evidence and the complaint witness’ evidence.

    3.6.   The applicant/appellant relies on the contentions raised in Grounds 1 and 2.

14. In advancing these contentions, applicant directs attention to several aspects of the reasons: the approach of the trial Judge to credibility and reliability (the finding EN had been frank and compelling and the approach to preferring the evidence of EN with respect to the initial complaint); ‘circular reasoning’ with respect to the initial complaint; and an asserted failure to consider the risk of unreliability as a result of EN ‘blending’ more than one incident.  The applicant also complains about aspects of the approach of the trial Judge to inconsistent statements.  Specifically, a finding that some were ‘peripheral’; the approach to a possible failure to refer to Counts 4 and 5 in an out of court statement; and the failure to consider the combined force of inconsistent statements. 

    Inadequate reasoning

15. A complaint of inadequate reasoning is a complaint that the reasons do not support the ultimate findings of fact and therefore the verdicts.[27] 

    [27]   JGS v The Queen [2020] SASCFC 48, [205]; R v Sexton [2018] SASCFC 28, [177].

16. We turn to each of the matters relied upon by the applicant. 

    The approach to credibility and reliability[28]

    [28]   Amended Appeal Grounds [3.2] and [3.4].

17. We have already dealt with the approach of the trial judge to EN being ‘frank’ and ‘compelling’ about her feelings towards the applicant during the relationship.  The approach of the trial Judge was open to him.  His reasoning was not inadequate.  The reasons must be read as a whole.  The finding was open to be made without express reference to the balance of the evidence of EN. 

18. The applicant also directs attention to the approach of the trial Judge to the differences in the evidence of EN and AT about the initial complaint.[29]  The applicant complains that, before considering each count in detail, the trial Judge found EN reliable about the initial complaint without making express reference to the whole of the evidence given in the trial. 

    [29]   Amended Appeal Grounds [3.1].

19. We reject this criticism.  As set out earlier, the issue at trial was not whether a complaint had been made.  The issue was whether EN was reliable about what had been said given the differences between her evidence compared to that of AT.  In the absence of a dispute about the conversation said to be a complaint having occurred, we are not satisfied that the resolution of that issue demanded express reference to the balance of the evidence.  Further, for reasons already given, the acceptance of the evidence of EN about the initial complaint by the trial Judge was not treated by him as resolving the issue of the credibility and reliability of EN about any count. 

20. We turn to other aspects of the reasoning of the trial Judge for preferring the evidence of EN over that of AT which are said to be examples of inadequate reasoning. We have set out the reasons of the trial Judge at [35] above. The applicant complains about the finding in [78] of the reasons about the evidence of AT involving an element of ‘reconstruction and paraphrasing’. Having reviewed the evidence of AT, it was open to the trial Judge to conclude that her evidence had involved reconstruction and paraphrasing of what she was told and to treat that as a matter relevant to the reliability of AT about what EN had said.

21. On more than one occasion, AT expressed uncertainty as to the detail of what had been said.  For example: [30]  

    [30]   Trial Transcript 208.

    QWhat words did she use.

    AAlong those sort of words, that - like she said he had his way with her, he had sex with her, and he said that - she said to me that she didn't want to do it, but she said she was really drunk and she said it was - and I said 'Oh it sounds horrible'.  Honestly I tried to cut it short, because there's so many people around us, and I felt like it wasn't the place to be talking about this.

    …

    QDid [EN] tell you what she was doing while [the applicant] was having sex with her, had his way with her.

    ANo.  She just told me she was really drunk.

    QShe told you she didn't want him to do that.

    AThat's - yes, she did say that.

    QWere they the words, or were there other words she used.

    ANo, she just said to me that she didn't want that to occur.  Something, you know, like feeling ashamed or uncomfortable.  I don't know, honestly, because I did try to cut it short.  Honestly, to tell you the truth, I just felt it wasn't the place for us to be chatting about this sort of stuff, because everyone around us all know us from that area, like we know everyone there.

22. The trial Judge had the benefit of seeing AT give evidence.  It was open to him to consider that her presentation may have adversely impacted upon her reliability.  The reasoning was not inadequate. 

23. We turn to the complaint that the trial Judge failed to adequately address the implications arising from the conflicts between the evidence of EN and AT.  The applicant particularly relies upon an aspect of the reasoning of the trial Judge when considering the complaint in the specific context of Count 6.  The trial Judge said:[31] 

    [136]I have considered AT’s evidence that EN told her that she was ‘really drunk’ after the Christmas party as ‘she went to the next-door neighbour’s house… drank [homemade alcohol] and got really drunk and then she went home and then she fell over the fence and got home’.  As I have already mentioned, I found AT to be an unreliable witness.  She was acutely anxious and parts of her evidence I found to be unlikely.  I prefer EN’s evidence in particular as to the circumstances of the initial complaint.  However, even if I did accept AT’s evidence that EN said to her that she was intoxicated, that is more intoxicated than she said during her evidence, that would not cause me to doubt her as to the core allegation of rape.

    [31]   R v TM (n 6) [136]. 

24. The applicant submits that the final sentence ‘underscores the lack of adequate regard’ for the conflicts between the evidence of EN and AT.  We do not agree.  Even if EN had said to AT that she was drunk, it was open to the trial Judge to accept EN’s evidence of Count 6.  No more needed to be said.  This was not a case in which it was suggested that EN might have been mistaken about, or mis‑remembered, a consensual encounter or her communication of the absence of consent.  That was never suggested at trial. 

25. Insofar as the applicant submitted that on the evidence of AT, EN might not have communicated a lack of consent and the trial Judge did not deal with that, this was not a matter which needed to be considered.  Having preferred the evidence of EN about the terms of the complaint, the evidence of AT as to what had been said had no further relevance. 

    Circular reasoning 

26. The applicant contends that the trial Judge engaged in ‘circular reasoning’ in preferring the evidence of EN over that of AT.  The applicant directs attention to [79] of the reasons and submits that to prefer the evidence of EN as to where the complaint had been made for the reasons the trial Judge gave involved a presumption that the evidence of EN was accurate.  We reject that submission. 

27. As set out in dealing with Ground 1, there was no dispute at trial that EN had spoken to AT.  The issue was the terms of that complaint.  The difference in the evidence about where EN and AT were at the time of the conversation was just one matter which shed light on the reliability of the two witnesses and what could be found as to what had been said.  The reasons of the trial Judge cannot be construed as involving a presumption that EN was accurate.  To the contrary, the trial Judge identified and considered the relevant differences and gave reasons for preferring the evidence of EN.  In an approach that was open, the trial Judge considered that it was unlikely that the complaint would be made in the presence of persons at the gym and that was one reason, among others, to prefer the evidence of EN about the conversation, the occurrence of which was not in dispute. 

28. It is necessary to deal with a further matter raised by the applicant about the approach of the trial Judge to preferring the evidence of EN over that of AT. 

29. The applicant directs attention to AT having given evidence about the daughter of EN (ZM) being in the car during the trip to the gym.  AT said: 

    QDo you recall how you got to the gym on this occasion.

    A[EN] would have taken me to the gym.  Sometimes I'd drive myself, but [EN] lived just - like she would drive past my house to take me, like take me, she said that she wanted to help me.

    QHow long did it take to get from your place to the gym. 

    ANot long, only a couple of minutes, it's really close, it's not even a kilometre away.

    QDo you recall any of this conversation that you had with [EN] at the gym occurring on the drive there. 

    AYeah, [ZM] would have been there, and then [ZM] would go in the creche there.

    HIS HONOUR

    QSorry, you said [ZM] would have been in the car, do you have a specific memory of [ZM] being in the car. 

    AYeah, she was there mostly, because her older son - 

    QSorry, when you say she was there mostly, really what I'm asking you is if you have a memory of her being in the car, on the day that you say you had this conversation -

    AYes, I do. 

    Q- at the gym. 

    AYes, she was in the car.  The older son wasn't. 

    XN

    QWere there times where you would drive to the gym and [ZM] wouldn't be with you.

    AThere were sometimes but mostly [ZM] always went there.  She likes the gym - she liked going in the creche and she’d always draw us pictures and stuff like that. 

1. The applicant submits that given the presence of the child, the complaint was no more likely to be made in the car than at the gym and that the trial Judge made no reference to that. 

2. We reject that the trial Judge erred in not referring in his reasons to the evidence of AT about the presence of ZM in the car on the morning of the complaint.  The evidence of AT was consistent with her not being sure that ZM was with them on the morning of the complaint.  That the child might have been in the car on the trip to the gym arose for the first time during the evidence of AT and after EN had given evidence.  EN had not said the child was present and it was not put to her that she had been.  In his closing address, the applicant did not refer to this aspect of the evidence of AT.  That is unsurprising given the uncertain nature of the evidence of AT, the absence of evidence from EN on the topic and the fact that at the time of this trip ZM would have been nine years of age, a matter relevant to whether EN might complain in the car while she was present.

3. In the circumstances, the trial Judge was not obliged to deal with this aspect of the evidence.  Insofar as the trial Judge found the complaint would more likely be made in circumstances of privacy and in this case, the car, even assuming ZM was present, that was still a more private place than a gym.  AT had said the gym was particularly full on this day.[32] 

   Inconsistent statements with respect to Counts 1, 3 and 5

   [32]   Trial Transcript 213.

4. The evidence of EN with respect to Count 1 included that after the act the subject of that count, the applicant ejaculated on her stomach.  In an affidavit given before trial, EN had said the applicant had ejaculated on her back.  In cross‑examination, EN said the applicant would either ejaculate on her back or on her stomach during the relationship.  EN agreed in cross‑examination that she had not previously said the applicant would ejaculate on her back. 

5. The evidence of EN about Count 3 included that the applicant had ejaculated.  EN said that when she went to the toilet, she could see semen running down her leg.  EN did not give evidence of the applicant being intoxicated.  In an affidavit given before trial, EN had said the applicant was drunk, was having trouble getting an erection and did not refer to the applicant having ejaculated. 

6. The evidence of EN about Count 5 was that count occurred about a month after the birth of ZM.  EN said ZM was asleep next to her in the ‘My Little Bed crib’.  In an affidavit given before trial, EN said the applicant had moved ZM to a cot in another room before the act of intercourse. 

7. The trial Judge did not overlook any of the above inconsistencies.  The trial Judge referred to each more than once.  First, when setting out the evidence of each count.  Second, when summarising the submissions of counsel for the applicant.  Third, in discussing the overall credibility and reliability of EN at which point the trial Judge found the inconsistencies to be peripheral.  The trial Judge said: 

   [102]… I accept, at times, EN was not certain as to some details.  These included, for example, where TM ejaculated, whether ZM was in the bed (or was removed from the bed) before she was raped, if TM ejaculated or not, and if he was drunk or not.  The issue is whether these aspects upon which she was uncertain make her an unreliable witness such that I should have a reasonable doubt about her evidence as they relate to each count.

   [103]In my view the details upon which she was unsure were peripheral matters and did not materially undermine my assessment of her reliability as to the essential elements of each of the charged acts of rape.

   (emphasis added)

8. Fourth, when evaluating the count to which the inconsistency particularly related. 

9. As to the inconsistency with respect to Count 1, the trial Judge found that inconsistency did not cause him to doubt the credibility or reliability of the complainant.  The trial Judge was satisfied that it was a relatively minor detail bearing in mind that EN and the applicant had engaged in sexual intercourse on many occasions. 

10. As to the inconsistency in Count 3 with respect to whether the applicant had ejaculated, the trial Judge accepted EN had been repeatedly raped throughout the relationship and that it was unremarkable that she might confuse some details in those circumstances.  The trial Judge found that he was uncertain as to whether the applicant was drunk and had ejaculated, but that he did not doubt ‘that an act of intercourse occurred in circumstances that amount to rape’. 

11. As to the inconsistency with respect to Count 5, the trial Judge rejected it as a matter impacting upon the credibility or reliability of EN.  The trial Judge stated that it ‘has not affected my assessment of the quality of [EN’s] evidence in reaction to the graphic rape she described in detail’. 

12. We reject that any aspect of the above reasoning was inadequate. 

13. It was open to treat the inconsistency in Count 1 as a ‘relatively minor detail’ and, in both Count 1 and Count 3, as explained by the relationship.  As the trial Judge observed, both counts occurred during a sexual relationship over many years.  The issue in each count was not whether, or where, the applicant had ejaculated nor whether he was intoxicated.  The issue in each count was whether the act of intercourse the subject of that count had taken place as described by EN (i.e. – without her consent and in circumstances that made that known to the applicant). 

14. The approach to the inconsistency in Count 5 was also open and the reasoning was adequate.  Having heard the evidence of EN, it was open to the trial Judge to conclude that even if she had been more intoxicated that she had said in evidence, that occasion of sexual intercourse had occurred as described in her evidence. 

15. It is necessary to deal with a related complaint about these inconsistencies.  The applicant contends the trial Judge failed to appreciate their combined significance before reaching a conclusion about the credibility and reliability of EN.  We do not agree. 

16. As set out above, the repeated reference to the inconsistencies demonstrates they were not overlooked.  Second, as set out above, at [102]–[103] of his reasons, and before turning to evaluate each count separately, the trial Judge considered each of them when evaluating the overall credibility and reliability of EN.  The approach at [102]–[103] is not consistent with a failure to consider their combined force.  As for the characterisation of the matters as ‘peripheral’ at [103], this characterisation was open given that the issue in each count was whether the act the subject of the count had occurred; whether EN had not consented; and whether she had expressed the absence of consent in the way set out in her evidence. 

    The possibility that EN had ‘blended incidents together’

17. It can be accepted the trial Judge did not refer to the possibility of EN being mistaken that an act the subject of a count charged had been ‘blended’ with another act of intercourse.  In our view, the trial Judge did not engage in inadequate reasoning in failing to deal with this issue. 

18. The starting point is the approach of the applicant during the evidence. 

19. In cross examination, the applicant put to EN that the rapes were ‘a complete fabrication’.[33]  It was not put to EN that she might have confused the conduct the subject of a count with some other act.  Consistent with that approach, the primary position of counsel for the applicant in his closing address was that the evidence of EN should be rejected as it involved ‘lies’, had been ‘embellished [and] rehearsed’ and was ‘inconsistent’.[34]  It was submitted that ‘none of these rapes occurred’.[35] 

    [33]   Trial Transcript 194.

    [34]   Ibid 250.

    [35]   Ibid 269.

20. This is not to overlook that in a closing address that concentrated substantially upon the submissions just mentioned, counsel for the applicant referred to the possibility of confusing incidents and blending them together.[36]  But that reference must be placed in context.  The submission made by counsel was in response to the possibility that inconsistencies might be explained by the length of the relationship and number of occasions of sexual intercourse.  It was at this point that counsel raised, for the first time, that EN might have confused an incident when she had been able to get away from being raped with occasions when she had not.[37] 

    [36]   Ibid 269–270.

    [37]   Ibid 269–270

21. In our view, given the way the trial was conducted and the primary focus of the applicant being upon whether the prosecution could exclude as a reasonable possibility that EN’s allegations had been fabricated, the reasoning of the trial Judge is not inadequate due to the absence of express reference to the risk of more than one incident being blended. 

22. We have set out the evidence of EN about each count above.  Each was linked to a specific event in EN’s life and was distinguished in a significant way from any other act of intercourse.  The only occasion of anal sex (Count 1).  An act two weeks before EN learned she was pregnant (Count 2).  The day EN gave birth to her first child (Count 3).  The birthday of the applicant (Count 4).  Within six weeks after her daughter was born by caesarean section (Count 5).  The final rape on the night of the Christmas function (Count 6). 

23. The reasons of the trial Judge are only consistent with him finding that each occasion was distinct and had been accurately recalled.  The trial Judge described the charged acts as ‘vivid recitals’ of events that had happened.  The trial Judge found EN’s evidence of Count 1 ‘compelling’ with the ‘hallmarks of a lived event’.  The trial Judge accepted the details surrounding Count 2, including that EN had discovered that she was pregnant two weeks after that occasion.  The trial Judge accepted the evidence of EN about the specific details surrounding Count 3, including that it was hours before EN went into labour.  With respect to Count 4, the trial Judge found the details surrounding that count compelling, including the recent birth of LN, the effects of the caesarean section performed upon EN and the way the sexual intercourse felt because of the recent birth.  With respect to Count 5, the trial Judge found convincing the detail which surrounded that count, namely that EN felt helpless given her broken ribs.  With respect to Count 6, the trial Judge found the evidence of EN as to what had occurred ‘convincing’. 

    The failure to refer to the conduct the subject of Counts 4 and 5 on 28 March 2019

24. On 28 March 2019, EN provided an affidavit to police.  In that affidavit, there was no reference to conduct the subject of Counts 4 and 5.  The agreed facts at trial included that the police officer who took the affidavit did not recall EN referring to any incident other than those set out in the affidavit.  It was also agreed that had other incidents been disclosed on 28 March 2019, the police officer would have included them. 

25. In cross‑examination, EN gave the following evidence about the absence of reference to Counts 4 and 5 in the affidavit:

    QYou see, I suggest [EN] that nowhere in that affidavit of 28 March 2019 did you mention either of the rapes following the birth of either your son or daughter. 

    ABecause we ran out of time.  We were there for four or five hours, Claire was – Ms Walker was interviewing me, and it was not possible to continue making further statements at that time. 

    QYour evidence is that you didn't tell Officer Walker about those incidents because you ran out of time, is that right. 

    AI had mentioned it to her, and she said we could make another time to make further statements. 

    QThat's just not right is it [EN]. 

    ANo, that's correct.

26. The trial Judge did not overlook the evidence of EN immediately above.  He set it out in his reasons and expressly referred to the submission of the applicant with respect to the absence of these incidents in the affidavit.  Having done so, the trial Judge then dealt with the submission when separately considering Counts 4 and 5. 

27. When considering Count 4, in reasoning later adopted with respect to Count 5, the trial Judge said he was unable to resolve whether EN had mentioned Counts 4 and 5 on 28 March 2019, or whether EN was mistaken about having done so.  Nevertheless, the trial Judge found:[38] 

    [125]Whatever the position is, it does not affect my assessment of her evidence.  I do not consider that if she said it for the first time in a statement on 6 October 2020, that it undermines her credibility or reliability with respect to her evidence.  The detailed account that she gave and indeed, the way she described it, was compelling.  It is easy to see why during the course of taking a lengthy statement that detail may not be given, that she thought she had mentioned it, or for some other reason, it did not end up in her statement.  I reject the submission put forward by defence counsel that as the rape, the subject of Count 4, was not described in her statement dated 28 March 2019 but only in her statement dated 6 October 2020, her account was a fabrication.

    [38]   R v TM (n 6), [125]. 

28. The applicant contends it was not open to find that EN may have mentioned the acts the subject of Counts 4 and 5 given the agreed facts.  We do not agree that this is an example of inadequate reasoning. 

29. In this case, it is not necessary to consider whether a trial Judge is bound to accept agreed facts.  This is so as the trial Judge found that even if EN did not mention the two relevant acts, it did not damage her credibility and reliability.  It was open to the trial Judge to find the evidence of EN compelling for the reasons given, namely, that the detail and the way it was given was compelling.  On the assumption that neither Count 4 or 5 was mentioned by EN on 28 March 2019, the approach of the trial Judge (that EN may have failed to mention it when giving a lengthy statement, or that she believed she had mentioned it when she had not) were findings that were open and are not examples of inadequate reasoning. 

30. For the above reasons, the contention of inadequate reasoning must be rejected.  The reasons of the trial Judge rationally support the facts found and the verdicts.[39] 

    Inadequate reasons

    [39]   JGS v The Queen [2020] SASCFC 48, [205].

31. A contention that reasons are inadequate is a contention that it is not possible to discern how the Judge rationally arrived at the determinative conclusions.[40]  We turn to that complaint.  Again, the applicant relies upon the same matters as relied upon in advancing the contention of inadequate reasoning. 

    [40]   R v Sexton [2018] SASCFC 28, [177].

32. Section 7(4) of the Juries Act 1927 (SA) provides:

    7—Trial without jury

    …

    (4)If a criminal trial proceeds without a jury under this section, the judge may make any decision that could have been made by a jury and such a decision will, for all purposes, have the same effect as a verdict of a jury.

33. In R v Keyte,[41] Doyle CJ, with whom Williams and Wicks JJ agreed, held that s 7(4) impliedly requires a judge to give reasons for a verdict following upon the trial of a charge by Judge alone.[42] 

    [41] (2000) 78 SASR 68.

    [42] Ibid 74 [26].

34. The principles applicable to the statutory obligation imposed on a judge to provide reasons are well settled.  In DL v The Queen,[43] Kiefel CJ, Keane and Edelman JJ, in considering an appeal from a criminal conviction, said that: 

    The content and detail of reasons ‘will vary according to the nature of the jurisdiction which the court is exercising and the particular matter the subject of the decision’.  In the absence of an express statutory provision, ‘a judge returning a verdict following a trial without a jury is obliged to give reasons sufficient to identify the principles of law applied by the judge and the main factual findings on which the judge relied’.  One reason for this obligation is the need for adequate reasons in order for an appellate court to discharge its statutory duty on an appeal from the decision and, correspondingly, for the parties to understand the basis for the decision for purposes including the exercise of any rights to appeal.

    … Not every failure to resolve a dispute will render reasons for decision inadequate to justify a verdict.  At one extreme, reasons for decision will not be inadequate merely because they fail to address an irrelevant dispute or one which is peripheral to the real issues.  Nor will they be inadequate merely because they fail to undertake ‘a minute explanation of every step in the reasoning process that leads to the judge's conclusion’.  At the other extreme, reasons will often be inadequate if the trial judge fails to explain his or her conclusion on a significant factual or evidential dispute that is a necessary step to the final conclusion.  In between these extremes, the adequacy of reasons will depend upon an assessment of the issues in the case, including the extent to which they were relied upon by counsel, their bearing upon the elements of the offence, and their significance to the course of the trial.  In particular:

    Ordinarily it would be necessary for a trial judge to summarise the crucial arguments of the parties, to formulate the issues for decision, to resolve any issues of law and fact which needed to be determined before the verdict could be arrived at, in the course of that resolution to explain how competing arguments of the parties were to be dealt with and why the resolution arrived at was arrived at, to apply the law found to the facts found, and to explain how the verdict followed.[44]

    (footnotes omitted)

    [43] (2018) 266 CLR 1.

    [44] Ibid 12–13 quoted in Lloyd v The King [2023] SASCA 106, [29]–[33].

35. Earlier we have set out the structure of the reasons of the trial Judge.  Those reasons are detailed and deal with all the relevant issues.  For reasons already given, other than one, each of the matters relied upon by the applicant in advancing this complaint was considered by the trial Judge and resolved in a way open to him.  The only matter not considered was the evidence of AT about ZM being in the car during the trip to the gym on the day the complaint was made.  Given the absence of reference to that evidence at trial after it had been given, adequate reasons did not require that aspect of the evidence to be mentioned. 

36. The trial Judge set out the relevant evidence, including the relevant cross‑examination, summarised in considerable detail the key arguments of the applicant and resolved the key issues.  The issue in each count was the credibility and reliability of EN.  Before accepting the evidence of EN with respect to a count, the trial Judge detailed the evidence which was central; the key criticisms of that evidence; and, on each occasion, explained why the evidence of EN was accepted.  The trial Judge then explained why guilt followed. 

37. Rather than being inadequate, the approach of the trial Judge reflects the identification, and application, of the relevant legal principles; detailed consideration of the relevant evidence; attention to, and resolution of, the key criticisms of that evidence and the other matters raised by the applicant; proper explanations of why EN’s evidence was accepted and why that established guilt of each count beyond a reasonable doubt. 

38. We dismiss Ground 3. 

    Conclusion

39. We grant permission to appeal but dismiss the appeal.